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Termination date in case of constructive dismissal

In case of constructive dismissal, if the employment contract is not terminated and the employee is still working for the employer on the date of the judicial decision, the termination of the employment contract is effective on the date of such decision.

The situation shall be different if the employment contract has already been terminated when the decision is rendered.

In the case at-hand, the Court of Appeal had set the date of termination of the employment contract at the date of their decision, even though the employee had stopped being employed by his employer two years before.

The French Supreme Court ruled in a different way, judging that in case of constructive dismissal, the effective date of termination of the employment contract cannot be set at the date of the decision if, on that date, the employment contract has already been terminated and the employee is not working for the employer anymore.

In such a case, the date of termination of the contract is the date on which the employment relationship actually ended.

Such a principle may have practical consequences, in particular as the length of service to be taken into account for calculating the various allowances and damages to be paid to the employee may be reduced based on the actual date of termination.

French Supreme Court, September 4, 2019, n°18-10.541